Opinion
No. 380 C.D. 2011
11-17-2011
Kelly J. Arrington, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE DAN PELLEGRINI, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BUTLER
Kelly J. Arrington (Claimant) petitions, pro se, for review of the January 10, 2011 order of the Unemployment Compensation Board of Review (Board) affirming the determination of the Referee denying Claimant's claim for waiting week July 31, 2010, and further finding that Claimant failed to establish that she had a medical condition requiring some accommodation, thereby making her available for work with this employer. The issues before the Court are: 1) whether Claimant voluntarily quit her employment for a necessitous and compelling reason, and 2) whether she had good cause for voluntarily quitting her employment. For the reasons that follow, we affirm the Board's order.
Claimant was employed by Sodexho (Employer) as a full-time housekeeper at a medical facility. During the weeks prior to the termination of Claimant's employment, there was some question as to whether construction crews were responsible for cleanliness issues at the facility, or whether Employer's employees were not performing their job duties. Claimant had taken a week off during the month of May of 2010 in order to take care of her mother. When she returned to work, Claimant received a written warning concerning unsatisfactory work performance based on her taking an unauthorized break in a prohibited area. Employer based its disciplinary actions on a photograph of Claimant taken by a member of the construction crew, showing Claimant sitting down and drinking coffee. Claimant admits that she took an unauthorized break at that time. On May 17, 2010, Claimant asked for some time off because she was distraught over the fact that someone she did not know had taken a picture of her, and Employer approved at least five days leave. Following those five days, Claimant requested at least another month of leave, but her request was denied. On May 26, 2010, Claimant met with Employer and was advised that she was required to return to work that evening or she would be terminated. Claimant did not report to work on the evening of May 26, 2010, nor did she call to report her absence, and she never returned to work at any time after May 26, 2010.
Claimant filed an application for benefits dated July 25, 2010, and requested that the application be backdated to May 23, 2010. She also requested that her waiting week be backdated to May 29, 2010, and her claims for benefits be backdated to include the weeks beginning June 5 through July 24, 2010. The Unemployment Compensation (UC) Service Center issued two determinations, one denying Claimant's application and claims for benefits, and the other denying her request for backdating. Claimant filed an appeal from each determination. Hearings were held for both appeals on October 13, 2010. The Referee affirmed both of the UC Service Center's determinations, and the Board affirmed both determinations of the Referee. Claimant appealed these determinations to this Court. This opinion addresses the Referee's order denying Claimant's application for benefits.
The appeal concerning the application and claims backdating is discussed in a separate opinion. See Arrington v. Unemployment Comp. Bd. of Review (Pa. Cmwlth No. 525 C.D. 2011, filed November 17, 2011). The Board chose not submit a brief for the present case.
"The Court's review of the Board's order is limited to determining whether constitutional rights were violated, an error of law was committed or whether necessary findings of fact are supported by substantial evidence." Russell v. Unemployment Comp. Bd. of Review, 812 A.2d 780, 783 n.1 (Pa. Cmwlth. 2002).
Claimant argues on appeal that she quit after developing medical problems. Specifically, she claims to have suffered a panic disorder after having felt violated by someone taking her picture without her knowledge. Because she was afraid she was being stalked, she could not return to work. Because such facts are not supported by this record, we reject Claimant's arguments.
Section 402(b) of the Unemployment Compensation Law (Law) provides, in relevant part, that a person "shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature . . . ."
Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, as amended, 43 P.S. § 802(b). --------
An employee who claims to have left employment for a necessitous and compelling reason must prove that: (1) circumstances existed which produced real and substantial pressure to terminate employment; (2) such circumstances would compel a reasonable person to act in the same manner; (3) the claimant acted with ordinary common sense; and, (4) the claimant made a reasonable effort to preserve her employment.Brunswick Hotel & Conference Ctr., LLC v. Unemployment Comp. Bd. of Review, 906 A.2d 657, 660 (Pa. Cmwlth. 2006). "It is well established that medical problems can create necessitous and compelling cause to leave employment." Lee Hosp. v. Unemployment Comp. Bd. of Review, 637 A.2d 695, 698 (Pa. Cmwlth. 1994). This Court has stated that:
To establish health problems as a compelling reason to quit, the claimant must (1) offer competent testimony that adequate health reasons existed to justify the voluntary termination, (2) have informed the employer of the health problems and (3) be available to work if reasonable accommodations can be made. Genetin v. Unemployment Compensation Board of Review, 499 Pa. 125, 451 A.2d 1353 (1982). Failure to meet any one of these conditions bars a claim for unemployment compensation . . . .Ann Kearney Astolfi DMD PC. v. Unemployment Comp. Bd. of Review, 995 A.2d 1286, 1290 (Pa. Cmwlth. 2010) (quoting Lee Hosp., 637 A.2d at 698).
On May 26, 2010, after approximately five days of approved time off, Claimant was informed by Employer that she was not injured as a result of her picture being taken without her knowledge, and she would have to return to work that night or be fired. Claimant did not call to report her absence on May 26, 2010, nor any day after that. Employer testified that there had been work available to Claimant if she chose to return to work. At the hearing before the Referee, Claimant produced a letter dated October 5, 2010 from her psychotherapist indicating that she was suffering from a panic disorder. However, the document was never presented to Employer, and the Referee ruled that the document was inadmissible hearsay. Claimant testified that she was not available for any type of work due to her alleged medical condition. Finally, the Board found Claimant's testimony that she was so traumatized by the unauthorized photograph incident that she could no longer work at any job less than credible.
Claimant's reason for not returning to her job was not reasonable, and she has made no effort to preserve her employment. In addition, Claimant presented no evidence that the Board found credible proving that she had a medical condition which justified voluntarily quitting or that she informed Employer of such a condition. Therefore, the Board did not err or abuse its discretion in affirming the Referee's determination that Claimant was ineligible for benefits pursuant to Section 402(b) of the Law.
For the reasons stated above, the Board's order is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge
ORDER
AND NOW, this 17th day of November, 2011, the January 10, 2011 order of the Unemployment Compensation Board of Review is affirmed.
/s/_________
JOHNNY J. BUTLER, Judge